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PETITIONER: STATE OF BIHAR & ORS.

       Vs.

RESPONDENT: SHYAM YADAV & ORS. ETC. ETC.

DATE OF JUDGMENT:       14/01/1997

BENCH: S.C. AGRAWAL,  G.T. NANAVATI

ACT:

HEADNOTE:

JUDGMENT:                             WITH        CIVIL APPEALS NOS. 9235 OF 1995 & 9236 OF 1995                       J U D G M E N T      S.C. AGRAWAL, J. :-      The question  that falls  for  consideration  in  these appeals is whether Class III and Class IV employees who were employed in connection with census operations of 1991 in the State of Bihar and whose services have been terminated after the completion  of the  census work  are  entitled  to  seek absorption in service under the Government of Bihar.      The census  operations are  conducted by the Government of India  in accordance  with the  provisions of  The Census Act, 1948  after an interval of 10 years. In connection with the said  census operations Class III and Class IV employees are employed  as Supervisors,  Checkers, Compilers, etc. for collecting different datas in the various Tabulation Offices established in  different parts  of the  Country. After  the completion of  the census  operations the  services of these employees are terminated. Demands have been raised from time to time  by  such  retrenched  census  employees  for  their absorption in  service in  the Central  Government or in the State Government.  Similar appointments  were  made  on  the posts  of   Supervisors,  Checkers,   Compilers,   etc.   in connection  with   1991  census  operations  and  after  the completion of  the census  operations  their  services  were terminated. By  his letter  dated  December  26,  1991,  the Registrar General  and Census  Commissioner,  Government  of India, requested  the Chief  Secretaries of  the  States  to extend  whatever   assistance  the  State  Government  could provide in  absorbing in  the State Government’s own offices as well as in the undertakings the temporary staff appointed in  connection  with  the  census  work  when  the  Regional Tabulation  Offices   which  have   been  set   up  in   the States/Union Territories are wound up in 1992. The Secretary to the  Government of  Bihar, Department  of  Personnel  and Administrative Reforms,  by his  letter dated  September  2, 1992, informed the Registrar General and Census Commissioner that the  number of  retrenched and surplus employees of the different offices  of the State Government are excessive and they are  waiting  for  being  adjusted  in  the  Government

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service but till now it has not been possible to give them a berth and  in the circumstances it would not be possible for the  State   Government  to  absorb  the  retrenched  census employees of the Government of India in its offices. Feeling aggrieved by the said communication dated September 2, 1992, a number  of retrenched  employees of 1991 census operations filed Writ  Petitions in  the Patna  High Court for quashing the letter  dated September  2, 1992  and for a direction to the  State  Government  of  Bihar  to  absorb  them  against existing vacancies  available in different departments under the State  Government. the  said Writ  Petitions  have  been allowed by  the High  Court by  the impugned judgments dated February 18,  1994 and  March 9,  1994. The  High Court  has directed the  State Government  to consider the cases of the retrenched census employees (hereinafter referred to as ‘the petitioners’) who  had filed  the Writ  Petitions before the High Court  for their  absorption along  with others  at the time of  regular appointment against suitable posts and that they should  be given  preference,  if  they  are  otherwise eligible for  such appointment,  and in  case they are found over age,  age relaxation equivalent to the period they have served in  the Census  Department, can also be provided, but such consideration  shall be  strictly  in  accordance  with inter se seniority of the retrenched employees of that year.      The High  Court has  proceeded on  the basis  that  the Government of  Bihar in  its Cabinet meeting held on January 8, 1973  took a  policy decision  to provide  employment  by absorbing retrenched  census employees  and  that  the  said policy decision  was reiterated  through  various  executive instructions of  the State  government contained  in letters dated April 7, 1982, May 14, 1985, February 14, 1986, May 5, 1987 and  August 19,  1987. The High Court has also referred to the  orders passed  in other  Writ Petitions  relating to retrenched  employees   of  1971  and  1981  census  wherein directions were  issued to  the State Government to consider the cases  of retrenched  employees of  1971 and 1981 census for employment  under the  State. The  High Court was of the view that  from time  to time  the  authorities  decided  to consider  the   cases  for  absorption/appointment  of  1991 retrenched census employees at the same pattern on which the other retrenched  census employees  were  absorbed.  Feeling aggrieved by the said judgments of the High Court, the State of Bihar has filed these appeals.      The question  which requires examination is whether the Government of  Bihar has  taken a  policy decision regarding absorption of the retrenched census employees of 1991 census operations. Before  we proceed  to examine  the question, we would refer  to the submission urged by Shri Vasudev Prasad, the learned  senior counsel  appearing for  the petitioners, that the  petitioners were employees of the State Government having  been   employed  in   connection  with   the  census operations in  the State  of  Bihar  and  that  it  was  the obligation of the State Government to absorb them in service under the  State. This  contention has  been raised  for the first time  in this  Court. It was not urged before the High Court. Moreover,  it runs  against the  case set  up by  the petitioners in  Writ Petitions  filed before  the High Court wherein it  has been  stated that  the Union of India in the Census Department  had published an advertisement on January 26, 1991  in various  daily newspapers inviting applications for census  work in 1991 for Grade III and Grade IV posts of Supervisors,  Checkers,   Compilers,  etc.  in  the  various districts mentioned  therein and that in accordance with the said advertisement  some  of  the  petitioners  applied  for appointment while  names  of  some  of  them  were  directly

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forwarded by  the Employment  Exchanges in various districts and that  after interview by a Selection Committee they were offered appointment  by the  Central Government  in the Home Ministry  and   the  petitioner   accepted  the   offer   of appointment and  that on  the basis  of the  said offer they were given temporary appointment in the Census Department of the Central Government and subsequently after the completion of the  census operations their services were terminated. In view  of  the  specific  averments  contained  in  the  Writ Petition, there is no basis for the claim by the petitioners that they  were  employees  of  the  State  Government  and, therefore, it  is the  obligation of the State Government to absorb them.      We  would   now  examine   the  question   whether  the Government of  Bihar had  taken a  policy decision regarding absorption of the retrenched employees of 1991 census in the State services.  In order  to establish the case that such a policy decision  had been  taken, the  learned  counsel  for petitioners has  taken us  through the  various documents on which reliance has been placed by the High Court.      Shri B.B.  Singh, the learned counsel appearing for the appellants, has,  however, submitted  that  those  documents relate to retrenched census employees employed in connection with the  census operations  of 1971  and 1981  and  do  not relate to  census operations of 1991 and that as regards the retrenched employees  of 1991 census the policy of the State Government is  that it  is not possible to absorb them since it found great difficulty in absorbing the employees of 1981 census operations and there are a large number of retrenched employees  of   the  State   Government  who   are   seeking absorption. We  will,  therefore,  briefly  refer  to  these documents.      The first  document is  the Memo  dated January 8, 1973 which deals  with the priority to be given to the retrenched Government servants  in appointments  to  be  made  to  non- Gazetted Class  III and  Class IV  posts. The  said Memo  is general  in  nature  relating  to  employees  who  had  been retrenched from  Government service  and directs that to the posts that  are reserved  as per  rule for  SCs/STs  or  Ex- servicemen only  such candidates from the list of retrenched persons should  be appointed  who come in the above category and if there are no candidates belonging to these categories in the  list then  the candidates  of SCs  and  STs  or  Ex- servicemen should  be taken from outside and that 50% of the unreserved vacancies  should be  filled up on priority basis by the suitable candidates from amongst the retrenched hands and that  the remaining  vacant posts should be filled up by the outsiders  by adopting  the normal  procedure. The  said Memo makes  no mention of retrenched census employees of the Central Government and it cannot, therefore, be construed as containing  a   policy  decision   regarding  absorption  of retrenched census  employees of  the Central Government. The letter dated April 7/8, 1982 from the Chief Secretary to all the Departments  of the  Government as  well as  the Head of Departments and  District Magistrates relates to appointment of retrenched  employees of  the census operation offices in the State  in Government  offices. In  the said letter it is stated that  work in  Bihar Tabulation  Offices  which  were opened in  different parts  of the  State under  the  census operation office has now been completed and the employees on account of  the retrenchment  of their  services were facing problems of unemployment. By the said letter it was directed that arrangement  should be made to appoint these retrenched employees against  vacant posts  by giving  them priority in keeping with  their individual  qualification and  merit and

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that the  District Magistrate  should get  prepared panel of such Class  III/IV employees  who had  been retrenched  from census operation  office and  preserve the same with them so that in future as and when vacancy comes up he would fill up the post  by appointing  persons from  this appeal.  It was, however, stated  that there  shall be  no concession  in age limit in  making such  appointment and that this order would not apply  in cases  of appointments  made on  the basis  of written competitive  examinations conducted  by Bihar Public Service Commission  or Lower Service Selection Board. In the letter dated May 14/17, 1985 from the Chief Secretary to all Departments of  the Government,  all  Heads  of  Department, Divisional   Commissioners,    District   Magistrates    and undertakings of  the State Government it was stated that the Government had  taken a  decision after due consideration to absorb  the   retrenched  census  employees  of  the  census operations in  the Government  services by  appointing  them against  vacancies   on  priority   basis   as   per   their qualifications as per the following directions:-      1. Where  appointment is  not being      made  by   Bihar   Public   Service      Commission   or    Lower    Service      Selection Board,  at  the  district      level if  two persons  out of  whom      one is a retrenched census employee      from  census   is  found   suitable      equally then  the retrenched census      employee may  be given  preference.      This concession  should be  allowed      only  when   it  conforms   to  the      prescribed  appointment   procedure      and is  within the  frame  work  of      reservation principles.      2. So  far  as  relaxation  of  age      limit is  concerned, the  period of      service of  the retrenched employee      in   census    operation   may   be      extended, but the maximum period of      exemption  should   not  exceed   3      years. Such exemption is admissible      to only  such retrenched  employees      of  census   operations  who   have      worked  for  at  least  six  months      continuously in census operations.      3.The District  Magistrates  should      prepare   panel   of   IVth   grade      employees  retrenched  from  census      operation and keep it with them and      the   vacant   posts   and   future      vacancies should  be filled up from      this panel.      4. The  Government should  be  kept      posted with  the  information  from      time to time as to the appointments      so far made or to be made in future      in    accordance     with     these      instructions.      The said directions were reiterated in the letter dated February 14,  1986 of  the Chief Secretary to all Government Departments,  All   Departmental   Heads,   All   Divisional Commissioners, All District undertakings. By the said letter the concerned  officers were directed to furnish information about the  total number of appointments that were made since April 8,  1982 and the number of retrenched census employees who were  appointed. The  next document  is the letter dated

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May 5,  1987 from  the Chief Secretary to all Departments of Government,   all    Heads   of    Department,    Divisional Commissioners and  District Magistrates. Shri Vasudev Prasad has placed  strong reliance on this letter and has submitted that it  shows that  the decision  of the  State  Government regarding absorption  was not  confined to retrenched census employees of  1971 and  1981 census  operations  but  was  a general decision  covering retrenched  census  employees  of subsequent census operations also. We do no find anything in the said  letter which  may lend  support to this inference. The letter  dated May  5, 1987 refers to the earlier letters dated April 8, 1982, May 17, 1985 and February 14, 1986, and after setting  out  the  directions  given  in  the  letters aforementioned further  directions with regard to absorption of retrenched census employees were given as under:-      (i)  the   prohibitory  orders   in      connection  with  not  filling  the      existing  vacancies  in  the  State      should not  be applied in the cases      of appointment of such employees;      (ii) exemption  regarding age limit      be extended  upto  the  age  of  35      years;      (iii)   the   retrenched   employee      should  be   given   the   foremost      priority subject  to the  condition      that the  retrenched employee holds      prescribed  qualifications  showing      his competence for the post, and      (iv)   the   directions   regarding      reservation  issued  from  time  to      time would be fully applicable.      The letter dated May 5, 1987 has to be read in the same context as  the earlier  letters referred  to above.  If the letter is  thus read,  it can  only be construed to refer to retrenched census employees of 1981 census operations. There is nothing  in the  said letter  which may  indicate that it contains a  policy for  the retrenched  census employees  of future census operations also. Having considered the various letters on which reliance has been placed by the High Court, we are  unable to hold that on the basis of the said letters it can  be said  that the  Government of  Bihar had  taken a policy decision  regarding absorption  of retrenched  census employees  of   future  census   operations  including   the retrenched census employees of 1991 census operations.      Reference may  now be made to the letters pertaining to the  retrenched  employees  of  1991  census  operations.  A reference has already been made earlier to the letter of the Registrar General and Census Commissioner dated December 26, 1991  and  the  reply  of  the  Government  of  Bihar  dated September 2,  1992 to  the said  letter. The  High Court has referred  to   letter  dated   July  23,   1992   from   the Commissioner,  Saharsa  Division,  and  the  letter  of  the Secretary to  the Government  of Bihar  dated September  29, 1992 addressed  to all the Commissioners. It appears that by letter dated March 4, 1992, the Director, Census Operations, Bihar, had  made a  request  for  absorption  of  retrenched census employees  of 1991  and the Regional Census Employees Union, Saharsa  Division,  were  also  submitting  a  demand regarding employment  of retrenched census employees of 1991 census. By  his letter dated July 23, 1992, addressed to the Chief  Secretary   to   the   Government   of   Bihar,   the Commissioner, Saharsa  Division, sought directions about the decision of the State Government in this regard. In the said letter the  Commissioner has made a reference to the earlier

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letter dated May 5, 1987 from the Chief Secretary containing instructions  regarding   adjustment  of  retrenched  census employees of 1981 census and has stated that those employees have been  absorbed in  the regional offices. Thereafter the Secretary  to   the  Government   of  Bihar,  Department  of Personnel and  Administrative Reforms,  Special Retrenchment Cell, addressed a letter dated September 19, 1992 to all the Divisional Commissioners and District Magistrates wherein he dealt with  the  matter  of  absorption  of  the  retrenched employees from  census office of Government of India. In the said letter  it is  state  that  the  State  Government  had received a  request from  the Registrar  General and  Census Commissioner  of   the  Government   of   India,   regarding absorption of  the employees  who were  in census offices of Government of  India for census operation, 1991 and that the State Government  having fully  considered the  case and has taken this  decision, that  it is not possible for the State Government to  assimilate the  retrenched employees  of  the census  offices  of  the  Government  of  India  because  in different offices of the State Government itself there is an excess number  of  both  retrenched  and  surplus  employees waiting for readjustment. A copy of the letter No. 261 dated September 2,  1992 sent  to the Registrar General and Census Commissioner of  the Government  of India  was also enclosed for information.      The letter  dated September 29, 1992 from the Secretary to the  Government of  Bihar, Department  of  Personnel  and Administrative Reforms, Special Retrenchment Cell, addressed to all  Divisional Commissioners  and  District  Magistrates referred to  by the  High Court was not sent in reference to letter of the Commissioner, Saharsa Division, dated July 23, 1992. The  said letter  dated September  29, 1992 deals with absorption  of   retrenchment/surplus  staff  of  the  State Government and it does not relate to retrenched employees of 1991 census  operations which  matter was specifically dealt with in the earlier letter dated September 19, 1992.      Shri Vasudev  Prasad has placed strong reliance on Memo dated October  18, 1993  from the  Directorate of Employment and Training,  Government of  Bihar, addressed  to  all  the Officers in-charge  of Employment  Exchanges in the State of Bihar. The said Memo relates to priorities/relaxation in the matter  of   appointment  of  retrenched  employees  of  the regional census  offices in  the State  of Bihar and makes a reference to  letter  of  January  1993  received  from  the Directorate General  of Employment  and Training, New Delhi. By the said Memo it was directed that the necessary steps be taken   in    accordance   with    the   rules   by   giving priority/relaxation to  the retrenched  employees  who  were employed in  connection with  1991 census  operations as per the directions  of the Directorate General of Employment and Training on the receipt of list of such retrenched employees from the  Directorate of Census and its subordinate offices. The said  Memo only contains directions for the Officers in- charge of  Employment Exchanges  to take  steps according to the rules  for giving  priority/relaxation in  the matter of registering and  sponsoring  the  names  of  the  retrenched employees  of  1991  census  operations  in  the  matter  of appointment in  the Government  services/undertakings. There is  nothing   in  the  said  letter  to  indicate  that  the Government  of   Bihar  had  given  a  commitment  regarding absorption of the retrenched census employees of 1991 census operations in the service of the State Government.      Shri Vasudev  Prasad has  also invited our attention to the advertisement  dated April  21, 1993  (published in  the newspaper ‘Hindustan’  dated May  17, 1993)  issued  by  the

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District Employment  Officer, Purnea,  whereby  applications were invited  for appointment  on  Grade  IV  posts  in  the District Collectrate,  Kishanganj and  other district  level officer of  the State  Government. In the said advertisement it is  stated: "Preference  shall  be  given  to  Discharged Census  Employees".   It  has   been  submitted   that  this advertisement shows  that the policy of the State Government was to  give preference  in the  matter  of  appointment  to discharged census  employees of 1991 census. This contention is not  borne out  by the  words used  in the  advertisement because it is not expressly stated in the advertisement that the  stipulation  regarding  preference  contained  in  this advertisement relates to discharged census employees of 1991 census. The  said stipulation  could be  for the employes of 1981 census  operations since the State Government had taken a decision for their absorption. Moreover from the rejoinder filed on  behalf of  the appellants  it appears  that not  a single retrenched  census employee of 1991 census operations has been  appointed in  Purnea on  the  basis  of  the  said advertisement.      Our attention  has also  been invited  to  order  dated January 10, 1996 relating to posting of 25 persons out of 26 retrenched census  employees who had been appointed by order dated December 26, 1995 as Clerks. In the rejoinder filed on behalf of  the appellants it has been pointed out that these 26  retrenched   census  employees   had  been  employed  in connection with  1971 and 1981 census operations and not for 1991 census operations.      Thus  there  is  nothing  in  the  documents  to  which reference has  been made by the High Court as well as in the documents on  which reliance has been placed by Shri Vasudev Prasad which  may indicate  that the  State  Government  had taken a  policy decision for absorption of retrenched census employees of  1991 census  operations. On  the  other  hand, there are letters of the State Government dated September 2, 1992 and  September 19, 1992 clearly stating that it was not possible for  the  State  Government  to  absorb  retrenched employees of  1991 census  operations in  the service of the Government of  Bihar. There is no material on record to show that the  decision of  the State  Government as contained in the letters  dated September  2, 1992 and September 19, 1992 was modified subsequently by the State Government and it was decided to  absorb such  retrenched employees of 1991 census operations in  the State service. In these circumstances, we are unable  to uphold  the impugned  judgments of  the  High Court holding  that in  view of policy decision taken by the State Government  regarding their  absorption the retrenched census employees  of 1991  census operations are entitled to be absorbed in the State services and on that basis the said employees can  claim preference or priority in the matter of such appointment in service under the State Government.      Some of  the petitioners had registered themselves with the  Employment  Exchange  prior  to  their  appointment  in connection with  1991 census  operations. Their  names  were forwarded by  the concerned  Employment Exchange and on that basis they  were so  appointed on a post connected with 1991 census operations  and consequently their names were deleted from the  register in  the Employment  Exchange. Since  they have been  retrenched  from  the  census  office,  they  are entitled to have their names restored in the register in the concerned Employment  Exchange. Similarly,  those retrenched employees of  1991 census operations who were not registered with any  Employment Exchange  can get themselves registered at an Employment Exchange. In accordance with the directions given by the Directorate General of Employment and Training,

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New Delhi,  referred to  in the  Memo  of  the  Director  of Employment and  Training, Bihar dated October 18, 1993, such retrenched    census     employees    should     be    given priority/relaxation by  the Employment Exchange wherein they are registered  in the  matter of  sponsoring and forwarding their names for appointment against future vacancies.      In the  result, the  appeals are  allowed, the impugned judgments of  the High  Court, in so far as they direct that the retrenched  employees  of  1991  census  operations  are entitled to be given preference in the matter of appointment in the services under the State of Bihar, are set aside. The petitioners can  apply  for  appointment  against  any  post falling vacant  if they  fulfil the  qualification and other conditions prescribed  for appointment  to such post and, if they so  apply, they  shall be considered in accordance with the rules governing such appointment. In case they are found to be  over age,  one time relaxation in age may be given to them provided  they were within the age limit prescribed for appointment at  the time of their initial recruitment in the census organisation.  It is  also directed that registration in the  Employment Exchange  of those  petitioners who  were earlier so  registered prior  to their  appointment  to  the census organisation shall be restored and those who were not registered would be entitled to get themselves registered at the  Employment  Exchange.  The  petitioners  who  are  thus registered with  the  Employment  Exchange  shall  be  given priority/relaxation in  the matter of forwarding their names for appointment  against future  vacancies. No  order as  to costs.